(iii) Professional degree earned during marriage. Calculate augmentation of earnings, discount present value and give augmentation to other party.

(ii) everything other than separate property

2. Equitably Divide

a. Separate property

b. Martial assets: judicial determination

(i) health and age of parties

(ii) earnings capacity

(iii) custody of children

(iv) duration of marriage

but NOTmarital fault

Adoption of Children | Consent Issues

1. Parents lose right to consent if

a. child surrendered

b. parent is mentally incapacitated—incapable of caring for kid

c. parent abandoned kid (≥ 6 mo. w/o any contact)

d. neglect (≥ 1 year of insubstantial contact)

Grounds for Termination of Parental Rights

1. Abuse

2. All grounds for dispensing with consent for adoption:

a. child surrendered

b. parent incapable of caring for kid

c. parent abandoned kid (≥ 6 mo. no contact)

d. neglect (≥ 1 year "insubstantial" contact)

Child Support: Who must provide?

a. Custodial parents

b. Non-custodial parents (divorce, filiation proc.)

c. Step-parents (if child would otherwise go on public assistance)

d. Person's equitably estopped from denying paternity |

Child Support: How long? and When can you modify?

a. until child is 21, or

b. finished with college subject to parent's economic ability to pay, and child's academic ability |

Modification: Substantial change in circumstances

**Custody Determinations

1. Standard: Best interests of Child

2. Factors: Judge has wide discretion, including:

a. wishes of parties, child

b. physical, mental health of parties

c. fitness of custodian (potential for abuse or neglect)

d. keeping sibling together

e. joint-custody?

3. Non-parent custody

a. non-parent must have standing (grandparents, siblings)

b. best interest of child standard:

(i) strong presumption in favor of parent

(ii) non-parent must show extraordinary circumstances or that parent is unfit

4. Visitation Rights

a. almost never denied to parents (even bad ones)

b. non-parents: must have standing, and show extraordinary circumstances

Support Agreements between unmarried cohabitants

Enforceable if:

• signed writing

• consideration other than sex

Pre- or Anti-Nuptial Agreements

1. writing, signed by both

2. couple got married

3. not product of duress

4. not unconscionable

a. spouse can support herself, would not become ward of the state.

Non-marital children

Conceived by and and born to parents who never marry

Proving Paternity

1. Bring "Filiation Proceeding" prior to child's 21st birthday

2. Father's denial must be corroborated

a. but not mother's claim of sex

4. DNA testing is usually conclusive

5. Father can be estopped from denying paternity

a. holds himself out as father, and

b. child relies

Heart-Balm Actions

Abolished in NY (petitioner punishable by felony):

1. breach of promise to marry

2. seduction of an unmarried female

3. alienation of affections

4. criminal conversation (adultery)

5. jactitation of marriage (rep'g yourself as someone's spouse when you are not)

Recognition of Non-Traditional Marriages

Same sex marriages and common law marriages not allowed in NY. But if a marriage was valid in that state where it was contracted, NY will recognize it if the couple moves to NY. Only exception is if it violates public policy.

Valid Marriage?

1. Capacity needed (age, sanity, etc)

2. License

3. Valid ceremony: officiant, 1 witness (usually 2), exchange of promises agreeing to take on new status as husband and wife)

Termination of Marriage: Declaration of Nullity

Grounds to nullify:

bigamy

incest (none, if related solely by marriage)

Can also adjudicate collateral matters (children, economics)

Declaration is not required. Can just separate.

Annullment: Grounds, SoL

1. Voidable–Annulment is required. Until you get one, you are still married.

2. Grounds–

a. Too young (< 18)

b. mental incapacity

c. duress

d. fraud ("essential aspect of marriage"): lies about

i. religion

ii. sex or procreation

e. 5 years of incurable insanity (can only start litigating after 5 years)

If divorce in another state and BOTH spouses participate, it will be honored in NY; it cannot be collaterally attacked; and it is res judicata as to all issues that could have been raised.

If divorce ex parte in another state, it is prima facie valid in NY, but it can be collaterally attacked–must show spouse who got a divorce was not a domiciliary of the other state (just went there for the sake of getting a divorce).

A divorce in a foreign country will be honored in NY if BOTH spouses participated under

the doctrine of comity. HOWEVER, if only ONE spouse participated, it is INVALID.

Out-of-State Child Support

So long as the initial order was entered by the home state of the child at the time of the suit, NY will honor it under a uniform statute adopted in all 50 states.

Home state retains jurisdiction so long as either parent or kid continues to live there.

Full Faith and Credit for Child Support Orders Act—requires deference to orders in the home state of the child.

Out-of-State Child Custody Orders

All states defer to the state that entered initial custody order so long as either parent or kid remains in the state.